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Tamatoa v Pukeiti [2009] CKCA 4; CA 9 of 2007 (28 July 2009)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA

CA No: 9/2007

IN THE MATTER of Section 54 of the Judicature Act 1980-81 and Article 60(2)(e) and (3) of the Constitution

AND

IN THE MATTER of the Mataiapo Title known as ANGA MATAIAPO of Matavera, Rarotonga

BETWEEN

ROURU TAMATOA of Rarotonga
Appellant

AND

PUTAI ARIKI TEARII NELLIE PUKEITI (nee) WILLIAMS of Rarotonga
Respondent

CA No. 02A/2004

IN THE MATTER of Section 54 of the Judicature Act 1980-81

AND

IN THE MATTER of the Mataiapo Title known as ANGA MATAIAPO

BETWEEN

PUTAI ARIKI TEARII NEELLIE PUKEITI (nee) WILLIAMS of Matavera
Appellant

AND

ROURU TAMATOA
Respondent

Coram: Barker JA (Presiding)
Fisher JA
Grice JA

Hearing date: 7 July 2009

Counsel: Mrs T Browne for Mrs Pukeiti in both appeals
Mr N George for Mr Tamatoa in both appeals

Decision: 28^th July 2009

JUDGMENT OF THE COURT

INTRODUCTION

1. Appeal CA 9/07 is an appeal from a Judgment of Smith J given on 16 September 2007 in which he purported to grant a rehearing of a reserved judgment of Hingston J delivered on 16 June 2004. The applications before the High Court in both judgments concerned claims by each of the parties to the title Anga Mataiapo. They were made pursuant to s.409(f) of the Cook Islands Act 1915 which gives the High Court jurisdiction to determine any question to the right of any person to hold office as an Ariki or other native chief of any island.

2. In a reserved judgment of 16 June 2004, Hingston J had found that Mr Tamatoa had the right to hold office as the Anga Mataispo. Mrs Browne, on behalf of the unsuccessful Respondent, Mrs Puketti, on 9 July 2004 filed an application for rehearing of his decision purporting to rely on Rule 221 of the Code of Civil Procedure. On the same date, Mrs Pukeiti also filed an application for leave to appeal the decision to this Court. Both applications were somewhat out of time but nothing now turns on that aspect.

3. The application for rehearing was heard by Smith J on 22 August 2006. In a judgment delivered on 16 September 2007, Smith J purported to grant the application for a "rehearing" of Hingston J's decision. Contrary to what Hingston J had decided, Smith J determined that the Mrs Pukeiti was entitled to the contested title Anga Mataiapo. Mr Tamatoa appealed to this Court against the granting of the order for rehearing. Despite having heard submissions as to the appropriateness of using the R 221 procedure, Smith J did not give any reasons for adopting that procedure. By so adopting the procedure, Smith J achieved a reversal of the decision of another Judge of equal standing.

4. Counsel indicated that they were in a position to argue before this Court an appeal from the decision of Hingston J pursuant to the application for leave to appeal filed on 9 July 2004. Mrs Browne advised the Court that her application for leave to appeal had not been withdrawn but that leave had never been granted. The Court indicated that it proposed granting to Mrs Pukeiti special leave pursuant to Article 60(3) of the Constitution to appeal against the decision of Hingson J. The Court also advised counsel that it would grant Mr Tomatoa's appeal against Smith J's purported order on the R 221 application, and that it would proceed to hear the substantive appeal from Hingston J's 2004 decision on the merits.

5. Because this judgment deals with both appeals, it will be convenient to refer to the parties as "Mr Tamatoe" and "Mrs Pukeiti."

RULE 221 APPLICATION

6. In Taupini John Teariki and Others v Strickland (judgment 20 November 2007) this Court indicated that an application under Rule 221, seeking a rehearing of an earlier decision of a Judge in the Land Division, should not be used in situations where an application under s. 390A of the Cook Islands Act 1915 should have been made. Whilst noting that the Land Division needed to be flexible in its procedures, this Court noted that the Land Division was nevertheless bound by the law and by the Code of Civil Procedure.

7. This Court in that above case held that Hingston J should not have used R221 to grant a rehearing of a prior decision of Smith J which had been challenged on the basis of alleged errors of fact and law. The s. 390A procedure had been available to the disaffected litigant in that case who chose not to invoke that procedure but to make a R221 application instead.

8. This Court considers that R221 should be utilised after a Judge alone trial and judgment, in a contested case only where a miscarriage of justice justifies the granting of a new trial. Although the categories are not limited, in New Zealand, this is usually the case where either (a) the judgment has been obtained by the unfair or improper practice of the successful party to the prejudice of the unsuccessful party or (b) material evidence has been discovered since the trial which could not reasonably have been known or foreseen before the trial. When the hearing has been conducted in an undefended basis with formal proof evidence of the claim, then different considerations apply to applications for rehearing.

9. The principal authorities in New Zealand include Dragicevich v Martinovich [1969] NZLR 306, 310, Green v Broadcasting Corporation of New Zealand [1988] NZLR 490, 504, Estate Realties & Wignall [1996] 2 NZLR 615 and A v Bottrill [2002] 3 WLR 1405 (PC) The Court adopts the principles stated in paragraph 8 above for rehearing applications in the Cook Islands. The only remedy for an unsuccessful litigant is to appeal or, where 390A applies, to make an application under that section. Rule 221 should be restricted to the kinds of situation mentioned in paragraph 8 above.

10. In the present case, the application to Smith J for a "rehearing" of Hingston J's decision of 16 June 2004 alleged that the Judge had erred in his factual findings. There was no suggestion of misconduct by the successful party nor of the discovery of fresh evidence. The application was in truth an appeal masquerading as an application for a rehearing. Despite submissions against the grant of a rehearing from Mr Tamatoa's counsel, the Judge purported to grant a rehearing. In its terms, Smith J's judgment might well have been a judgment on an appeal from Hingston J's judgment. Smith J criticised Hingston J's factual findings and "set aside" his decision. This should not have happened. Mrs Pukeiti's only remedy, if dissatisfied with the Hingston J judgment, was to have appealed.

11. Counsel for Mrs Pukeiti had the foresight to lodge an application for leave to appeal from Smith J's judgment. She did not prosecute the appeal but preferred to take the misguided R221 approach. However, the application for leave to appeal was never withdrawn and was available to be activated.

12. It was therefore possible for this Court to give leave to appeal from and for counsel to argue an appeal from Hingston J's decision on the merits.

13. Consequently, the judgment of Smith J of 10 September 2007 is quashed. The Court now proceeds to consider the appeal from Hingston J's 2004 judgment. Special leave to bring this appeal is granted under Article 60(3) of the Constitution.

BACKGROUND

14. Mrs Pukeiti filed her application in the High Court under s. 409(f) in 2002 to determine the right of any person to hold the Anga Mataiapo. Mrs Browne appeared for Mrs Pukeiti and a Mr Tutu Ina for an objector at that stage. Mr Tamatoa's competing application had not yet been filed. Mrs Pukeiti filed an affidavit in support of her claim which included a 'family tree'.

15. This genealogy was similar to that produced for this Court. It commenced with Iro Poaitu Mataiapo who had two natural children one of whom was Purauti (the first). Descended from him was Teupokoakana who left five children including Purauti (the second) and Mariari. Purauti (the second) was adopted by Iro Tauananga, a child of Purauti (the first). The claim for Mrs Pukeiti was that Purauti (the second) acquired the title from his adopted father Iro who was the successor of Paurauti (the first). On Puraiti (the second's) death, the title passed to his unmarried sister Marian. On her death, the family chose Iola Williams who held the title for 35 years until his death in 1991. Mrs Pukeiti is one of his daughters.

16. The contrary claim was that Tekura held the title and when she went to Aitutaki her husband Tama Ben or Beni gave the title to Purauti (the second) to hold as a mere custodian.

17. Smith J noted earlier Court decisions in 1942, 1949 and 1955 and that Mr Tamatoa's ancestor, Repoama, had stated in the Court in 1949 that he would not seek to disturb the holding of the title by Mariari, who had succeeded to the title on the death of her brother, Purauti (the second), He had reserved the right to claim the title on Mariari's death.

18. Smith J accepted neither genealogy and adjourned the application. He instructed the applicant to call a new meeting of persons eligible to vote on the election of a successor to the title and to file minutes together with genealogies supported by Court decisions or other relevant sources.

19. By the time the application came before the Court again, Mr Tamatoa had filed his competing application and both applications were heard together by Hingston J in March 2004.

20. To support their respective claims to the title of Anga Mataiapo, each party put forward different genealogy claims. At our request, counsel for each party supplied us with a lineage diagram (also known as a "genealogy" or "family tree"). These diagrams are for the purpose of assisting the Court to follow the argument. We found them most helpful and ask that they be provided in all future land and title claims. They do not have to be a present or former exhibit. They can be essentially a diagrammatic submission from counsel based on evidence found elsewhere.

21. At the hearings before Hingston J and Smith J, each of the parties was represented by their present Counsel, and evidence was led to support the claims. At the hearing before Hingston J on 8 March 2004 Mr George for Mr Tamatoa called a substantial number of witnesses to provide "live evidence" to supporting his genealogy claim. In contrast the "rehearing" on 22 August 2006 was almost entirely taken up with submissions by Counsel for Mrs Pukeiti, taking the Court through Court Minutes and other records.

22. Argument over this title had come before the Land Court on two earlier occasions. In 1937, Judge Ayson had the dispute over the title before him. He issued a judgment on 13 May 1942. On the 1 February 1955, Chief Judge Morgan also issued a decision following meetings in September and October 1954. Neither of these decisions appeared to have delved into the dispute in any detail.

23. One of the main areas of disagreement between the parties relates to whether Mrs Pukeiti's ancestor, Purauti (the second), was given the Anga Mataiapo title as a 'custodian' by an ancestor of Mr Tamatoa, Tekura, in the 1890s when she left to live in Aitutaki, Mr Tamatoa claims that Purauti only held the title on a temporary basis.

24. The case for Mrs Pukeiti starts from a Minute Book of the "Cook and Other Islands Land Titles Court" (the Land Court) which shows an application for a vesting order for land dated 6 July 1907. The application in Maori was signed "Anga" who was Anga Purauti, then aged 43.

DOCUMENTARY EVIDENCE

25. On 12 July 1907, Chief Judge Gudgeon made an order vesting this land in Anga Purauti, Tukuao and Avaava Urea. Although this order related to land, it does constitute an acknowledgment by the Land Court of the holding of the title Anga by Purautl (the second).

26. Initially, Mr Tamatoa had claimed that the title of Anga Mataiapo had been given to Purauti by Tama Ben (aka Beni) in the early 1930s. This contention was not pursued and it is hard to see how it could have been, given the evidence from the land title in 1907.

27. Next, it was alleged that statements recorded in Land Court Minute Book 13/293 by one, Paretamariki, showed that Purauti held the title of Anga purely as custodian for Tekura Anga. Reliance on any such statement was withdrawn at the hearing before Smith J.

28. Further support for the notion of Purauti merely holding the Anga title as custodian for Tekura Anga was said to come from a statement in Minute Book 14/366 on 19 June 1941 by one Kao. He told the Court that his father, Potai, had told him that Purauti had said he was merely a custodian of the title.

29. Minute Book 14/366 was produced to this Court. Kao does not feature in either genealogy of either of the parties presently before the Court. So it can be inferred that he had no connection with the family of either party to these appeals. In cross-examination, Kao stated that he knew "Purauti had title - had use of it,"

30. The same Minute Book page records the genealogy differently from that on which Mr Tamatoa relied. In particular, Teariki Anga was shown as having a second wife, Aupena. This fact is not shown in Mr Tamatra's document said to have been based in the genealogy supplied in Minute Book 14/266.

31. Purauti, the person called Anga by the Court vesting order in 1907, died in 1933. His claim to the title was as a child adopted by Iro Tauananga Mataiapo and his second wife Aupena. This couple also adopted Tautu – otherwise known as Tukuau - who appeared on the title in 1907 along with Anga Purauti. Evidence given in the Land Court on 6 April 1937 by one Emily Williams claimed that Purauti had held the title "for a long time."

32. The next holder of the title, according to Mrs Pukeiti, was Marian, a sister of Purauti Mataiapo. Her accession to the title, was the result of family agreement in 1937 as recorded by the judgment of Judge Ayson in the Land Court on 13 May 1942.

33. Judge Ayson refused at that hearing to make an order in respect of the Anga title in favour of Repoama (the predecessor in claim of Mr Tamatoa). The Judge left the application to be brought forward when the next appointment to the title was to be made. The Judge said: "it would seem that Repoama has a definite claim for consideration, as the evidence points to the fact that he is of the senior line."

34. In 1955, the title was again before the Court. Chief Judge Morgan recorded that whilst Repoama had claimed the title at a family meeting, he had had no supporters. John Williams had accepted the title on the death of Mariari. He had undertaken the ritual of biting the pig's ear.

35. Chief Judge Morgan then said:

Trouble over this title has arisen because John Williams family in the first place would not recognize Repoama's family. To this court it appears very doubtful if John Williams is from Anga. The genealogies to support his blood right are most unsatisfactory but the court is not prepared to discount them altogether. The court of 1942 (MB 15/14) did not say that Repoama must be elected but did find that the "Evidence" points to the facts that his is of the Senior Line." Meetings held by the people have not solved the problem. It is doubtful if the Rangatira families have any right to take part in the election for they have not been shown in the genealogies given to the court. In the absence of any agreement the court finds that no person has been properly elected to hold the title of Anga and Repoama's application is dismissed but without prejudice to any claims he might make under a future agreement."

36. Despite Chief Judge Morgan's reservations about John Williams' right to the title, he held the title from 1955 to 1991. Mrs Pukeiti claims that she is the family's choice to have succeeded him. She is one of John Williams' 16 children.

HINGSTON J'S DECISION

37. At the hearing before Hingston J in 2004, Mr Tamatoa and several others gave evidence in support of the contention that Mrs Pukeiti and those who had purported to have held the Anga title in the past, had no right to the title; They claimed that Mrs Pukeiti had no blood connection with the title: that It had been "stolen" from the rightful owners when Tekura Anga went to Aitutaki: that Purauti had "cloaked" himself with the title in order to make a fraudulent claim in land. They asked the Court to do what the Judges in 1937 and 1955 had hesitated to do. Mr Tamatoa claimed that his family had elected him to the title after a series of meetings and that he had gone through the traditional investiture ceremony at Marae Turangaau.

38. The Judge enquired about the consequences for a family which moved away from its tribal lands. Counsel supplied conflicting answers as to whether departure involved a family losing its land rights in tribal land. Various official reports into land and titles in the Cook Islands were referred to by counsel.

39. Hingston J considered that Mrs Pukeiti's claims to the title as a descendant of Iro Purauti was untenable because it disregarded the evidence before the Court in the earlier hearings in which Anga Tukuau Mataiapo had been recognized by witnesses and those present at the Court hearings. The argument in those earlier cases had been that Purauti had been a mere custodian of the title.

40. The Judge held that Mrs Pukeiti had been unable to prove the vital blood relationships and that the previous title holders had never made an application to the Court but had "swiftly attended to succession without even holding meetings / elections."

41. As to Tekura moving to Aitutaki, Hingston J said there was no definite date for this move other than that it was before the Land Court came 'to these islands'. In the earlier cases it had not been suggested that Repoama had been disqualified by custom from seeking the title. He was accepted in the 1930s and 1940s as having status to claim. The Judge acknowledged that some of the paperwork and time limits in Mr Tamatoa's case were sometimes contradictory. He did not find this unusual bearing in mind oral traditions but recorded is care in evaluating such evidence.

42. Hingston J did not mention the Land Court records of 1907 although they were before him. In this Court's view, those records present more reliable testimony than the rather subjective "oral history" on which the Judge seemed to rely.

43. Hingston J held that Mr Tamatoa had confirmed his genealogical links to Anga Tukuau and was entitled to claim from his grandfather Repoama. He was accordingly confirmed as the Anga Mataiapo duly elected by the proper Kopu Mataiapo and properly invested as such. The 2007 decision of Smith J (which this Court has quashed), made similar declarations in favour of Mrs Pukeiti.

DECISION OF THE COURT

44. In the Court's view, Hingston J placed too much reliance on the oral genealogy. The Judge made no mention in his judgment of the land vesting order of 1907 which recognised Purauti as having the title of Anga. Nor did he refer to subsequent information on the register of the same land. For example on 7 April 1937, Anga Mariari was referred to in the Court records by the title of "Anga Mataiapo". The register notes the dismissal on 26 September 1940 of an application by Repoama for amendment of title.

45. Difficulty might have been caused by Purauti Mataiapo having been adopted by Iro Tauananga Mataiapo and his second wife. Counsel cited several judgments of this Court about the rights of adopted children to succession to land rights. The right of an adopted child to claim a title was affirmed in the decision of this Court in Tukura Uti Tou v Tuakana Toeta (30 November 1995). The Court adopted a 1968 decision of Chief Judge Morgan In re Succession to Tuokura Maeva deceased MB 28/161: "It is also true that adopted children, not of the blood, have held Ariki and other titles and that their descendants have continued to hold those titles and some of the family lands."

46. Moreover, the judgment of Dillon J in re Vakatini Ariki Title Claim (14 April 1980) is to similar effect. The effect of these authorities is to hold that a blood link is not essential to claim a title right.

47. A feature of this case is the lack of hard evidence of exactly what were the rules concerning the acquisition of the ale, such as: Who are entitled to participate in the selection process? Who is eligible for appointment? Whether, and, what terms and for what period, might a title be given to a custodian to hold?

48. What is important and a weighty factor for this Court is that, despite the uncertainties created by the 1942 and 1955 decisions, John Williams held the title for 36 years until his death in 1991. He held it without any dispute being taken to the Court and despite the Court in 1955 saying that no person had been elected. After he died in 1991 and his daughter Mrs Pukeiti assumed the title initially on a temporary basis. It was not until 2002 that any application was made to the Court to confirm her holding of the title.

49. The above conclusion, which was essentially that reached by Smith J in his misguided rehearing judgment, is supported by the documents. Like Smith J this Court places more reliance on these than on the oral history- at times conflicting - which was at the heart of the Tamatoa case.

50. Accordingly, the appeal against the judgment of Hingston J of 16 June 2004 is allowed. The Court makes an order under s. 409(f) of the Act that Mrs Pukeiti is a proper and rightful person to hold the office of Anga Mataiapo.

51. Since Mr Tamatoa was quite justified in appealing against Smith J's purported application of R 221 - a procedure wrongly invoked by Mrs Pukeiti - the Court considers the appropriate way to deal with costs is to make no order as to costs on these two appeals.

Barker JA

Fisher JA

Grice JA